SC-WHATSAPP 2 LAST

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PTI

May 15, 2017

UPDATED: May 15, 2017 20:50 IST

Vishwanathan argued that there was the issue of metadata

Vishwanathan argued that there was the issue of metadata in the matter as one can make out a pattern by reading out the messages exchanged in the WhatsApp groups. Metadata is a set of data which describes and gives information about other data and is collected automatically.

"They (WhatsApp) are targeting us (users) by exploiting the data for commercial use. Without we being aware, several people will get to know about my health, my sexual preferences and other things which I dont want others to know," he said.

"WhatsApp is now a Facebook family company. WhatsApp admits that Facebook will use WhatsApp messages. They are saying they have taken the consent of their users but the court will have to see whether this consent is valid in the eyes of law," he said, adding that such service providers cannot make inroads into the fundamental rights of citizens.

He also referred to an order passed by data regulatory authority in Germanys Hamburg which had directed WhatsApp not to share the data of users.

However, Venugopal said each of the countries have their own privacy policy, but India has no such policy.

When the bench was told that the WhatsApp privacy policy hampered the right of communication, it said "but then it will be a privacy issue and not about communication alone. If you are keeping your messages apart, how is your communication affected.

"The moment you are using Google, everything is available based on the search you make. This may not be an issue related to WhatsApp only. There has to be other service providers also. Is somebody forcing you to have it," the bench said.

The apex court further observed, "basically your identity which was restricted to WhatsApp till now, is used for Facebook or its family for commercial purposes. Whether individuals identity is liable to be shared for commercial exploitation? That is an issue."

However, Luthra maintained that no one can access the messages shared between A to B on WhatsApp as it is end-to-end encrypted.

Senior advocate Kapil Sibal, representing WhatsApp, told the bench that despite having billions of users in the world, no complaint has been made ever that any part of encrypted messages has been accessed by anybody.

"If anybody protects privacy in this country it is WhatsApp. It is better than the Bhim app which has been launched by the government," he said.

During the hearing, Divan said that operation of WhatsApp here was subject to the Indian law and their business model is like an "economic espionage".

The bench was also told that the existing machinery was not adequate to deal with the situation and the government must come out with a proper legislation.

The Centre told the bench that regulations to over-the- top (OTT) service providers like WhatsApp or Facebook needed to be regulated and the regulation needs to be fine-tuned to deal with it.

The bench asked the Centre, "Do the rules (in the Information Technology Act) cover the issues which is before us".

To this, the Centre said, "some aspects are covered but not the entire issue. We have to show what is the existing legal umbrella internationally and in India on data protection. OTT data protection has to be customised and it has to be regulated in a different manner as there are complexities involved in it."

"We are in Digital India where there are commercial, social and political interests. All these three interests have to be balanced," the government said, adding "this is a highly technical field and it is not about one app only that can guide the policy".

The court also heard arguments advanced by Facebook which has questioned the maintainability of the petition.

The Centre had earlier said that a "regulatory regime" for data protection is in the offing while asserting that an individuals freedom of choice needs to be protected.

The apex court is hearing the appeal assailing the Delhi High Court verdict on the ground that no relief was granted for data shared by users after September 25, 2016 which amounted to infringement of fundamental rights under Articles 19 and 21 of the Constitution.

It had on January 16 sought the responses from the Centre and Telecom Regulatory Authority of India on the plea that privacy of over 157 million Indians has been infringed by social networking sites - WhatsApp and Facebook - for alleged commercial use of personal communication. PTI ABA MNL SJK RKS ARC

This is unedited, unformatted feed from the Press Trust of India wire.

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